Ellsworth v. Savre

Rothrook, J. There was some controversy at the trial npon the question as to whether the plaintiff was a farmer. The court must have been of the opinion that the evidence did not show that to be his .occupation, because none of the property but the horse was held to be exempt. Under section 3072 of the Code, the head of a family is entitled to hold one horse as exempt, without regard to his occupation. The only question in the case is, did the plaintiff, by his acts at and after the property was seized, waive his right to hold the horse exempt from seizure upon the writs? It appears that immediately after the levy the defendant informed the plaintiff thereof, and he made no claim of exemption, and he failed to assert such claim for some two weeks after the levy. Under the rule in the case of Angell v. Johnson, 51 Iowa, 625, this would be a waiver of the exemption. See, also, Moffitt v. Adams, 60 Iowa, 44. Rut section 3072 of the Code, under which those decisions were made, was amended by chapter 49 of the Acts of the Nineteenth General Assembly (1882) as follows: “Any person entitled to any of the exemptions mentioned in this section does not waive his rights thereto by failing to designate or select such exempt property, or by failing to object to a levy thereon, unless failing or refusing so to do when required to make such designation or selection by the officers about to levy.” It was therefore the duty of the sheriff, when he reported the fact of a levy to the defendant, to require him to make a selection of any property that he claimed to be exempt. It is claimed, however, that the plaintiff is precluded by the law of estoppel from making the claim, because he remained silent for two weeks, and thus allowed the sheriff to incur expense in keeping the property and advertising it for sale. If failure to make the Claim can work an estoppel under the statute as amended, (a question we do not determine,) it can have no such effect in this case. It is not shown what, if any, expense was incurred by the defendant in keeping the property, and the return of the sheriff shows that [451] it was not advertised for sale until after notice of plaintiff’s claim. The levy was made on the eighteenth of February, and the notice of sale was given on the second day of April. We think the judgment of the court below ought to be Affirmed.